Opinion
Thе defendant, Barry A., appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), two counts of sexual assault in the second degree in violation of § 53a-71 (a) (4), one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73 (a) (1) (B), one count of sexual assault in the fourth degree in violation of § 53a-73 (a) (1) (E), and one count of risk of iry ury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that (1) the court improperly prohibited defense counsel from refreshing the recollection of a witness, thus infringing on the defendant’s right to confrontation under the federal constitution, (2) the court improperly allowed the state to present evidence of uncharged misconduct, and (3) the prosecutоr engaged in prosecu-torial impropriety, depriving him of a fair trial. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. The defendant and his wife lived together with their four children in Plainfield until the defendant’s arrest in 2007. They had three biological children, a daughter, C, and two sons, B and R. The defendant and his wife later adopted the victim in February, 1999.
When the victim was approximately eleven years old, the defendant began sexually assaulting her. The first instance occurred when the defendant, a truck driver by profession, took her on an overnight truck run. The defendant removed the victim’s clothes, and touched her chest and her “private.” On multiple other occasions, the defendant sexually assaulted the victim by forcing her to engage in oral and vaginal intercourse in his truck, as well as at their home. After the assaults, the defendant would tell thе victim that he was sorry and that he loved her. When the victim was thirteen years old, she told C about the sexual assaults, and C told their youth pastor. Shortly thereafter, the youth pastor reported the incident to the Department of Children and Families (department).
The defendant thereafter was arrested and charged with the aforementioned crimes. The case proceeded to a jury trial, after which the jury found the defendant guilty on all counts. The court rendered judgment accordingly and sentenced him to a total effective sentence of forty years incarceration, execution suspended after twenty years, and twenty years probation with special conditions, which included registration as a sex offender. This appeal followed.
I
The defendant first claims that the court improperly prohibited defense counsel from refreshing the recollection of the victim, thereby infringing on his constitutional right to confrontation. The defendant argues that the victim’s inability to remember the inconsistent statements she made to her aunt and to the department reflected on her credibility, a purpose for which the defendant was entitled to use the department’s report to refresh her recollection. We disagree.
“Whether the recollection of a witness needs to be refreshed and whether it can be or has been refreshed by any means is in each case a question for the trial court, and its conclusion is unreviewable unless there has been a clear abuse of discretion.” (Internal quotation marks omitted.) State v. Bruno,
“If, after reviewing the trial court’s evidentiary rulings, we conclude that the trial court [ruled] properly . . . then the defendant’s constitutional claims necessarily fail. ... If, however, we conclude that the trial court [ruled] improperly . . . we will proceed to analyze [w]hether [the] limitations on impeachment, including cross-examination, [were] so severe as to violate [the defendant’s rights under] the confrontation clause of the sixth amendment ... a question of law [that is] reviewed de novo.” (Citations omitted; internal quotation marks omitted). Id.
“The determinatiоn of whether a matter is relevant to a material issue or is collateral generally rests within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v.
A witness [however] may be asked, in good faith, about specific instances of conduct of the witness, if probative of the witness’ character for untrathfulness. Pursuant to this rale of evidence, [a] witness mаy be impeached by specific acts of conduct that evidence a lack of veracity. . . . While a witness may be impeached by such acts, [b]oth the allowance and the extent of cross-examination into the [prior acts] of a witness is discretionary with the trial court . . . and such evidence may be excluded ... if it has a tendency to confuse or impede the litigation by injecting collateral issues into the trial.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Annulli,
The defendant argues that the court improperly prohibited defense counsel from refreshing the victim’s recollection because the line of inquiry was relevant to the victim’s credibility. Yet, defense counsel’s extensive questioning on cross-examination allowed the defendant to confront the victim regarding any potential lies she previously had told to her aunt and/or to the department. The court reasonably could have determined that allowing defense counsel to use the report to refresh the victim’s recollection would have confused the issue by injecting a collateral issue into the trial. This could have required the jury to determine whether the victim, in an unrelated incident, had lied to her aunt or to the department on more than one occasion, turning the trial into a referendum on whether a thirteen year old previously had lied.
II
The defendant also contends that the court improperly allowed the state to present evidence of uncharged misconduct. This claim is unavailing.
Prior to trial, the state filed a notice of intent to introduce uncharged sexual misconduct of the defendant. In support of its notice, the state set forth allegations that the defendant first assaulted C when she was between the ages of ten and eleven years old, while on one of the defendant’s truck routes. The notice described that the defendant again engaged in sexual contact with C when she was between the ages of thirteen and fourteen years old. The notice also recounted details of the sexual assaults, including the defendant “reaching his hand under her shirt and squeezing and rubbing her breast, pulling her shirt up and sucking on her breast, and by putting his hand down her pants and underwear and rubbing her vagina.” The court found this uncharged misconduct relevant.
After finding the uncharged misconduct evidence relevant, the court instructed the jury on its permissible use first when the victim testified, again when C testified, and once again during its charge to the jury. When the victim testified, the court gave a limiting instruction to the jury, stating that “[s]uch evidence . . . may bear upon the defendant’s knowledge, the state of mind, but also may bear upon a system of criminal activity engaged in by the defendant . . . .” During its jury charge, the court provided the following instruction: “In a criminal case in which the defendant is charged with a crime exhibiting aberrant and compulsive sexual behavior, evidence of the defendant’s сommission of another offense or offenses is admissible and may be considered for its bearing on any matter to which it is relevant . . . [but] on its own is not sufficient to prove the defendant guilty of the crimes charged in the information. . . . [T]he defendant is not on trial for any act or conduct or offense not charged in the information. . . . Such evidence is being admitted solely to show or establish the defendant’s intent or motive for the commission of the crime charged.”
The standard of review governing this claim is well established. “The
“As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior.” (Internal quotation marks omitted.) State v. DeJesus,
“The court in DeJesus determined that evidence of this nature is admissible if three conditions are satisfied. First, the evidence must be relevant to prove that the defendant had a propensity or a tendency to engage in the type of aberrant and compulsive criminal sexual behavior with which he or she is charged. Relevancy is established by satisfying the liberal standard pursuant to which evidence previously was admitted under the common scheme or plan exception. Accordingly, evidence of uncharged misconduct is relevant to prove that the defendant had a propensity or a tendency to engage in the crime charged only if it is: (1) . . . not too remote in time; (2) . . . similar to the offense charged; and (3) . . . committed upon persons similar to the prosecuting witness. . . . Second, the evidence must be more probative than prejudicial. ... In balancing the probative value of such evidence against its prejudicial effect . . . trial courts must be mindful of the purpose for which the evidence is to be admitted, namely, to permit the jury to consider a defendant’s prior bad acts in the area of sexual abuse or child molestation for the purpose of showing propensity. . . . Third, to minimize the risk of undue prejudice to the defendant, the admission of evidence of uncharged sexual misconduct under the limited propensity exception . . . must be accompanied by an appropriate cautionary instruction to the jury.” (Citations omitted; internal quotation marks omitted.) State v. L.W.,
A
The defendant first claims that the uncharged misconduct was not relevant to the charged offenses because the acts, the location of the acts, and the relationship of C to the defendant were not sufficiently similar to those of the victim аnd the defendant. We disagree.
“Our review of the relevant case law reflects that there is no bright line test for determining whether alleged acts of uncharged sexual misconduct and those involving the complaining witness in a sexual assault case are sufficiently similar. What is clear, however, is that the
In evaluating the relevancy of evidence, we recognize the strong similarities between the victim and C. The court found that “the [victim] and the subject of the uncharged misconduct are both daughters of the defendant. One daughter was [ten] to [thirteen] years old at the time in question, the other approximately [eleven] to [thirteen]. . . . The evidence seeks to offer that the defendant touched both individuals’ chests with his hands. The defendant touched both of their chests with his mouth, then touched and rubbed both their vaginas. Also, [it seeks to offer] that the activity frequently took place in thе defendant’s truck.” The defendant argues that because his conduct escalated with the victim to oral and vaginal sexual intercourse, the defendant’s uncharged misconduct with regard to C cannot properly be admitted. We are unpersuaded by this argument.
An escalation of sexual assault does not deprive the state of the ability to present the uncharged misconduct. The defendant’s assault against C was substantially similar to, and mirrored, the defendant’s initial stages of assault against the victim. The defendant’s acts with regard to C were not too remote in time, were similar to the offenses charged, and were committed upon her by her father, similar to that of the victim. See State v. L.W., supra,
B
The defendant further claims that thе uncharged misconduct evidence should have been excluded because it was more prejudicial than probative. “Although evidence of child sex abuse is undoubtedly harmful to the defendant, that is not the test of whether evidence is unduly prejudicial. Rather, evidence is excluded as unduly prejudicial when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence. ... As explained in DeJesus, because of the unusually aberrant and pathological nature of the crime of child molestation, prior acts of similar misconduct, as opposed to other types of misconduct, are deemed to be highly probative because they tend to establish a necessary motive or explanation for an otherwise inexplicably horrible crime . . . and assist the jury in assessing the probability that a defendant has been falsely accused of such shocking behavior.” (Emphasis in original; internal quotation marks omitted.) State v. Allen,
The justifications for presenting uncharged misconduct evidence are to show common scheme, pattern, or design. States. DeJesus, supra,
C
Finally, the defendant argues that because the uncharged misconduct evidence prejudiced him so severely, no cautionary instruction would curе the error. We disagree.
Under Dejesus, we look to the whether the court’s cautionary instruction was appropriate and decreased the likelihood of undue prejudice by prohibiting the use of the uncharged misconduct evidence for an unjustified purpose. A trial court “minimize [s] the risk of undue prejudice to the defendant by issuing a cautionary instruction explaining that the jury could use the uncharged misconduct evidence only for common scheme or plan and intent purposes, and not as proof that [the defendant] committed the acts charged in this case for which he is being prosecuted.” (Internal quotation marks omitted.) State v. Antonaras, supra,
A cautionary instruction is rеquired so that the jury does not use the evidence for an impermissible purpose. Uncharged misconduct for sex crime cases, however, is subject to a more liberal standard. “[T]he purpose for which the [uncharged misconduct] evidence is to be admitted [is] to permit the jury to consider a defendant’s prior bad acts in the area of sexual abuse or child molestation for the puipose of showing propensity.” (Internal quotation marks omitted.) Id., 331. A court’s instruction, “pursuant to the common scheme or plan exception, rather than [pursuant to] the propensity exception, [however, is] harmless.” (Internal quotation marks omitted.) State v. Antonaras, supra,
The court in the present case did not instruct the jury that the evidence could be used to prove the defendant’s propensity or a tendency to engage in the crime charged, as would be allowed under DeJesus; rather, it gave an instruction that more strictly limited its use by the jury.
In light of our determinations, we conclude that the court properly found the uncharged misconduct evidence relevant to the crime charged and more probative than prejudicial. The court’s cautionary instruction also properly minimized the risk of undue prejudice to the defendant, and therefore, we cannot conclude that the court abused its discretion in admitting the uncharged misconduct evidence.
Ill
Finally, the defendant claims that the prosecutor committed various acts of prosecutorial impropriety that deprived him of his constitutional right to a fair trial. The defendant raises twenty instances of prosecu-torial impropriety in the categories of (1) personal opinion, (2) appeal to emotions, (3) denigration of defense counsel, and (4) extraneous matters and facts not in evidence.
“[T]he defendant’s failure to object at trial to each of the occurrences that he now raises as instances of prosecutorial impropriety, though relevant to our inquiry, is not fatal to review of his claims. . . . This does not mean, however, that the absence of an objection at trial does not play a significant role in the determination of whether the challenged statements were, in fact, improper. ... To the contrary, we continue to adhere to the well established maxim that defense counsel’s failure to object to the prosecutor’s argument when it was made suggests that defense counsel did not believe that it was [improper] in fight of the record of the case at the time.” (Internal quotation marks omitted.) State v. Taft,
“[T]he touchstone of due process analysis in cases of alleged prosecutorial [impropriety] is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Internal quotation marks omitted.) State v. Stevenson,
“[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial.” (Internal quotation marks omitted.) State v. Stevenson, supra,
“In
A
The defendant first claims that the prosecutor expressed his personal opinion as to the evidence presented at trial and to the general credibility of the victim and the defendant. We do not agree.
“[Although a] prosecutor is permitted to comment [on] the evidence presented at trial and to argue the inferences that the jurors might draw therefrom, he is not permitted to vouch personally for the truth or veracity of the state’s witnesses.” (Internal quotation marks omitted.) Id., 43. “Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position.” (Internal quotation marks omitted.) Id., 35.
“This court has held that it is not improper for a prosecutor to offer an opinion when commenting on evidence that supports the credibility of a witness. . . . A prosecutor may contend that testimony is truthful because it is corroborated by the other evidence in the case. . . . Furthermore, a prosecutor may properly comment on the credibility of a witness where the comment reflects reasonable inferences from the evidence adduced at trial.” (Citations omitted; internal quotation marks omitted.) State v. Pereira,
The defendant first claims that the prosecutor improperly stated during his rebuttal argument the following: “You heard [the victim] testify. . . . You weigh her credibility ... as with all the witnesses. I would submit to you that based on [the defendant’s] demeanor on the stand, the fact that he falsified some of his records and he has every reason in the world not to tell the truth, the defendant has no credibility whatsoever in looking at his testimony in conjunction with all the other testimony in the case.”
Before the prosecutor invited the jurors to make any inferences, he informed them that it was their duty to weigh the credibility of the witnesses and the defendant. Only after this remark did he encourage them to look at the testimony of all the witnesses together when determining the credibility of the defendant. The prosecutor’s statements, therefore, simply
Another set of statements the defendant cites as improper relate to the honesty of the victim and C. In his closing argument, defense counsel stated that the victim had a motive to he because the sexual assault “didn’t happen. She made up the story because she was trying to get out of that situation that she was living in, and it worked. Her life is better now.” The prosecutor stated in his rebuttal argument that “[i]f [the victim and C] were loоking to attack the defendant, they could have done a much better job. If this was made up, they are not going to come in and teh you, ‘Yeah, there were two times I was in his truck. I don’t know where we were, though.’ ... I think it’s reasonable that they wouldn’t know where it was. . . . And if they were lying, why don’t they exaggerate?”
The prosecutor’s statements in this instance were commenting on evidence that would support an opposing inference to the defendant’s claim, namely that the victim and C had testified truthfully. It is not improper for the prosecutor to argue that the victim and C had no apparent motive to lie. See State v. Thompson,
The prosecutor’s statements, in both his closing and rebuttal arguments, cited relevant evidence presented at trial. We, accordingly, cannot conclude that any of the defendant’s cited remarks of prosecutorial impropriety were an improper expression of the prosecutor’s opinion on the evidence or on the credibility of the defendant or the witnesses.
B
The defendant next contends that the prosecutor repeatedly mаde improper remarks that appealed to the emotions, passion, and prejudices of the jurors. We disagree.
It is well established that “[a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . [S]uch appeals should be avoided because they have the effect of diverting the [jurors’] attention from their duty to decide the case on the evidence. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” (Internal quotation marks omitted.) State v. Long, supra,
The defendant first claims that the prosecutor improperly argued to the jury that “[C] told you that when she was about [ten] years old, while she was in her father’s truck with him on one of his milk runs, they went to sleep . . . [and] while she is asleep with her head on her daddy’s lap, she wakes up and finds him to be having his hand in her shirt. . . .” The defendant cites State v. Warholic, 278 Conn. 354, 376,
Another alleged prosecutorial impropriety cited by the defendant occurred when the prosecutor stated: “Was it a dysfunctional home? I don’t know. But the king of dysfunction is molesting your children. Are the kids mad at him? Of course they are. He molested the children. Was he not allowed to go see his family? Of course. He mоlested the children.” Similar to other challenged statements, the prosecutor here was commenting on evidence offered at trial, encouraging the jury to focus on the relevant evidence in the case. The jury was free to make its own conclusions based on common sense about the reason for the children’s anger toward the defendant, and therefore, these statements did not improperly appeal to the emotions of the jurors.
Lastly, the defendant argues that the prosecutor appealed to the emotions of the jurors when he stated: “Some discrepancies between the testimony? Of course. Kids come into a courtroom. They testify. They are testifying about things that happened three and one-half years ago. They’re kids. They’re being questioned by an experienced trial attorney. Of course there are going to be some inconsistencies.” The prosecutor’s remarks in this category do not appeal to the emotions, passions, and prejudices of the jurors, but instead appeal to their common sense. The prosecutor was drawing on previous expert and witness testimony presented at trial, which proffered that a child does not always remember the specific details of the acts of sexual assault against her. The prosecutor’s argument was not improper, therefore, because he cited relevant evidence that could lead the jury to rationally appraise the evidence and to decide independently whether the victim was lying.
c
The defendant also claims that the prosecutor inappropriately denigrated defense counsel.
“[T]he prosecutor is expected to refrain frоm impugning, directly or through implication, the integrity or institutional role of defense counsel. . . . [I]t is
The defendant cites as improper the prosecutor’s statements that, “quite a few interesting things that [defense counsel] told you, particularly on proof beyond a reasonable doubt, asking if you would buy a house or bаse your retirement fund on what [the victim] said. I don’t know what he’s talking about, that me or any of you are ever going to be buying a house based on what a tenth grader tells you.” This statement was in response to defense counsel’s argument comparing the burden of reasonable doubt to “issues about doubts in serious affairs in [the jurors’ lives]” in which he asked the jury, “[w]ould you buy a house based on [the vic-ton’s] word? Would you invest your retirement fund on what [the victim] had to say and the type of investigation that was done here? Think about those things when you think about reasonable doubt and just how little she could remember.” The prosecutor was undoubtedly permitted to respond to defense counsel’s characterization of the burden of reasonable doubt as to the “issues about doubts in serious affairs of [the jurors’ lives].” See State v. Albino, supra,
D
Lastly, the defendant claims that the prosecutor improperly injected into the proceedings extraneous matters and facts not in evidence. We disagree.
“A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record.” (Internal quotation marks omitted.) State v. Medrano,
“In determining whether such [impropriety] has occurred, the reviewing court must give duе deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line .... Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. ... Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case.” (Internal quotation marks omitted.) State v. Gould,
The defendant claims that the prosecutor injected extraneous matters into the trial when he stated that the jury was “allowed to consider [that the defendant is] accused of not just [sexual assault] to one child but to two.”
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
One instance where defense counsel demonstrated an inconsistency in the victim’s statement was when the victim testified that she told her aunt that she was hit by her mother, but admitted telling the department she was not hit by her mother.
The defendant cites State v. Colton,
In the present case, the defendant was not offering evidence to show the motive or bias of the victim. Rather, the defendant was trying to refresh the recolleсtion of the victim in order to determine whether she Med to her aunt and/or lied to the department. More specifically, defense counsel stated: “I don’t want the court to get confused. I’m not trying to impeach her. If this doesn’t refresh her recollection, it doesn’t. ... If it doesn’t, I certainly don’t plan on impeaching her on what she has to say.” The defendant’s attempt to refresh the victim’s recollection, therefore, is separate and apart from impeaching her based on a motive, bias, or interest. The defendant was not presenting evidence to show the victim’s motive or bias, and therefore the court did not improperly find defense counsel’s request to refresh the victim’s memory a collateral matter.
The defendant claims that the court “failed to isolate the appropriate exception under which the jury could considеr the testimony. This left the jurors with little guidance and substantial confusion, leaving to determine for themselves how to interpret the evidence.” The instruction given by the court did not confuse the members of the jury, but rather limited the scope for which they could consider the evidence. The jurors have no other access to the legal standard for the uncharged misconduct evidence, and therefore would be unaware of the liberal scope to which it may be used. Consequently, the court giving a more limited instruction than required under DeJesus could not have caused confusion for the jurors.
We carefully have reviewed each of the defendant’s twenty claims of prosecutorial impropriety. We have discovered that in the context of the entire closing and rebuttal arguments, several claims are completely without merit. We, therefore, limit our discussion to the claims that warrant discussion.
The defendant also claims that the prosecutor improperly stated: “Counsel suggests this is part of some grand plan as part of the divorce. If it was to set up that set of circumstances that I just laid out for you, it took a bunch of geniuses, I’ll tell you that.” We cannot discern how this statement could constitute prosecutorial impropriety. The statement, which simply mentions defense counsel's comment, is not denigration.
The defendant argues that the prosecutor’s statement was improper because it “likely confused the jurors as to how they were supposed to evaluate the uncharged misconduct evidence.” This argument, however, concerns the question of whether the defendant was deprived of a fair trial, a question we reach only if we determine that the prosecutor has committed an impropriety. Because we have not determined that the prosecutor’s statement was improper, we do not analyze its effect on the defendant’s trial.